(i) Outer shells only

(ii) Outer shells along with slides

(iii) Hinge-lids cut out and inner frames,

are printed cartons which include within their scope folded and flattened containers of paper and paper board within the description of erstwhile Tariff Item 17(4) (as it stood before 1.3.86) read with notification No. 66/82-CE dt. 28.2.82.

3. Learned advocate Shri Ravinder Narain for some of the appellants herein has urged that the question of dutiability of cigarette packets/outer shells/outer-shells with inner slides under erstwhile Tariff Item 17(4) read with notification 66/82-CE dt. 28.2.82 has already been gone into by the High Courts of Delhi and Madras in the case (i) Zupiter Printery and Another Vs. UOI [1991 (34) ECR (Delhi)] and (ii) Asia Tobacco Co. Ltd. Vs. UOI [1992 (58) ELT 18 (Mad.)] respectively.

4. On the analogy of reasoning in the aforesaid two judgments of the High Courts, he submits that Hinge lids cut out and inner frames cannot also be made liable to duty in terms of the said tariff entry read with the said notification.

5. In order to understand and appreciate the issue and ratio of decisions before the two High Courts-on which vehement argument has been advanced by the learned SDR for the Revenue we reproduce below the relevant extracts from the said judgments:-

"Zupiter Printery and another Vs. UOI

[1991 (34) ECR 7 (Delhi)]

1. ..................

2. Petitioner company manufacturers cigarette 'outer shell' of printed sheets supplied to it by M/s. Godfrey Philips India Limited a manufacturer of cigarettes. Petitioner charges the said company conversion charges only i.e. converting the printed sheets into outer shells. The outer shells had, till the presentation of the Finance Bill, 1982 been cleared under Tariff Item No. 68 which is a residuary entry. But because of the introduction of the Finance Bill, 1983 Superintendent, Central Excise, Gujarat (Respondent No. 4 herein), instructed the petitioner classify the outer shells under tariff entry No. 17(4). He also instructed the petitioner to obtain a licence and apply for re-classification. This direction of the respondent No. 4 was objected to be the petitioner on the ground that this item is not covered under sub-item (4) of Item 17 of the Tariff. After protracted correspondence petitioner agreed to apply for provisional clearance of his item i.e. the outer shells under Rule 9B of the Central Excise Rules under Tariff Item 17(4). Petitioner also applied for licence and filed the fresh classification list under Tariff Item 17(4) on 6th March, 1982. Superintendent Central Excise allowed clearance of these outer shells on provisional basis. But, subsequently, vide the impugned order, based on the direction (dated 7.4.1982) of the Board, respondent No. 4 classified the outer shells as printed boxes under Tariff Item 17(4) and thus deprived the petitioner of its entitlement to exemption granted vide Notification dated 28th February, 1982. Provisional assessment already granted was also thus withdrawn.

3. Aggrieved by this action of the respondent present petition has been filed challenging the impugned order interalia, on the ground that the Board has no authority under the law to give direction a quasi-judicial authority like the Assistant Collector who has seized of the matter on the judicial side nor can not shells of the cigarette packet which are open from both sides be classified as box or container.

14. We had the privilege to see this outer shell i.e., the product of the petitioner. It is open from both sides. Without the slide it cannot hold or contain cigarettes. It is only when slide is inserted that it becomes complete and can be called a box or container but without slide it is neither. Broad description of the shell does not fit in the expression of box or container.

15